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ANALYSIS OF NOVEMBER 16, 2010 CAV OPINIONS

[Posted November 16, 2010] The Court of Appeals released no published opinions on November 9, but we get four today. There are two Workers’ Compensation decisions and two criminal appeals.

Workers’ Compensation

A lawyer who’s a first-class wordsmith (less flatteringly known as a grammar geek) manages to purloin a win out of a seemingly impossible factual situation in Davis v. Lynchburg Waste Management. The employee got a temporary-partial award for knee injuries; five years later, she got replacement work with another company for more than she had been making at the time of her injury. She dutifully notified her former boss the next day.

The old employer paid her benefits through June 11, 2006, and its lawyer sent her lawyer a form to terminate the prior award. That form never got signed despite the employer’s persistence in following it up with letters and eventually a replacement form.

After a considerable delay, the Commission sent the employer a notice that it shouldn’t have terminated benefit payments without on order or a signed agreement. On June 11, 2008, two years to the day after the last day for which benefits had been paid, the employee wrote to the Commission and complained that the benefits were due and owing for the intervening two-year period.

That two-year anniversary is a magic date, because the Comp Act states that the Commission can’t review an award more than 24 months after “the last day for which compensation was paid.” The employer got the Commission’s nastygram two days after the anniversary. Clearly, it felt that it had done what it could, but the employee simply neglected or refused to sign the termination document. What’s a wordsmith to do?

Why, the wordsmith looks at how the statute is phrased: “last day for which compensation was paid.” It doesn’t say when the compensation was to have been paid. Accordingly, the lawyer directed the employer to cut a check for 19 more days of compensation, through June 30, 2006. He sent that to the erstwhile employee, and filed an application for a hearing on June 30, 2008 . . . 24 months from the last day for which compensation was paid.

The employee cried foul before the Commission, but to no avail; reversing a deputy’s ruling of untimeliness, the full Commission held that by virtue of the adjusted “final day,” the application was now timely. Today, a panel of the CAV affirms that ruling, noting that this isn’t a statute of limitation that, having once expired, can never be revived again. This situation permits the employer to cap its losses at two years by the simple expedient of bringing its benefits payments up to a date exactly two years earlier than the date its application is filed.

Chalk one up for the grammar geeks.

The other Comp appeal is Montalbano v. Richmond Ford, which involves two issues. The first is the Commission’s finding that Montalbano was disqualified from benefits because he was terminated for cause. At issue here is the employer’s harassment policy, the relevant part of which prohibits all sorts of unwelcome acts “relating to an individual’s race, color, sex, religion, national origin, citizenship, age, or handicap.”

According to the employer, the employee was rude and obnoxious to his fellow employees, including those under his supervision. The company warned him that a continuation of his anger-control problems might lead to his termination. But on July 25, 2008, he did it again, blowing up at one employee over a dispute about a tool; this was right after finding several others not working that day. The company had had enough; it terminated him for harassment.

Two years earlier, Montalbano had sustained a compensable wrist injury; his employment at the time of his termination was in substitute employment as a supervisor, since he still couldn’t return to his previous job working on cars. He sought permanent partial benefits for the wrist injury, citing his doctor’s opinion that he had reached maximum medical improvement. The employer countered with a doctor who said that MMI was still some time off. That matters because an employee can’t get a permanent-partial award until he reaches MMI.

The Commission found the evidence on MMI to be in equipoise, and since the employee bears the burden of proof, it ruled against him. The Commission also ruled that the employer was justified in firing him, so his right to receive wage benefits ceased.

Today, the Court of Appeals affirms, holding that the firing was indeed justified. Most of us don’t need to be persuaded that an employer is justified in terminating an employee who berates fellow workers, but one issue here merits special mention. The employee argued plausibly that nothing he said or did “related to” anyone’s race, sex, age, etc., so it didn’t violate the anti-harassment policy. That sounds plausible, but the court today notes that that list is prefaced with this language: “The term ‘harassment’ includes, but is not limited to: . . .”

Usually, an enumeration of items is taken to exclude items not listed; this is the rule expressio unius est exclusion alterius. But when the list starts out with an “is not limited to,” it’s understood that the list isn’t exhaustive.

The court also affirms the ruling on permanent-partial benefits (which would be unaffected by the termination ruling). The opinion explains carefully the difference between a burden of production (which the employee clearly met by producing his doctor) and the burden of persuasion, which requires you to convince the finder of fact that your evidence is stronger than the other guy’s. The factfinder here decided this was a tie, and ties go to the employer, as I note above.

Criminal law

A couple of years ago, in a year-end wrap-up, I listed a few cases in a category I entitled, “Stupid Criminal Tricks.” By now I should be more jaded; but I still enjoy the ways in which crooks contrive to get themselves caught. In Redmond v. Commonwealth, a convicted felon effectively invited the public into his home to see – get this – his gun collection.

Okay; it wasn’t quite that overt. But it’s close. Our hero decided to sell his home, ahead of an impending foreclosure proceeding. In order to do that, he sensibly engaged the services of a real-estate agent, who listed the property for sale.

Meanwhile, a federal ATF agent got word that Redmond owned guns despite his convicted-felon status. When the agent learned of the listing of the home, he and another investigator, posing as a happy couple, arranged to view the house for the ostensible purpose of deciding whether or not to buy it.

You know what’s coming, right? During the tour of the house, the agent took the “couple” through all of the rooms, including the one in which a wood-and-glass gun display case stood. Looking casually at the case, the agents saw several rifles and a box of ammunition.

Soon thereafter, the agent returned to the home – not for a second buyer’s look, but to execute the search warrant he had obtained. Redmond’s fiancée was home, but Redmond wasn’t; when the agents revealed their purpose, she had the presence of mind to start insisting that the guns didn’t belong to Redmond, but to her 19-year-old son. She hastily informed the officials that Redmond had moved out after conveying title to the home to her.

That didn’t quite square with the prosecution’s evidence at trial, which showed that the home belonged to the couple as joint tenants – until, that is, the bank foreclosed a few months later. The trial court considered that and other evidence (such as the fact that another gun was found on top of some clothing belonging to Redmond) in convicting him.

On appeal, the Court of Appeals first discards one potential killer argument for the Commonwealth as it reviews the denial of a motion to suppress. Redmond, echoing his fiancée’s story, insisted that the home didn’t belong to him. If so, then exactly what standing does he have to complain about a search of a house he doesn’t own? Alas for the Commonwealth; the prosecution didn’t raise this argument in the trial court, so we have to go through slightly more analysis to get to the end. Fortunately for those of us who follow Fourth-Amendment law, we get a detailed discussion of the suppression issue.

The court rules today, as a matter of first impression in Virginia, that using a ruse like this to get inside a house is permissible for law-enforcement authorities. Turning to a couple of very similar cases from California, New Jersey, and Arizona, the court concludes that police are allowed to do this, particularly where a defendant essentially invites members of the public to come inside and take a look. It helps that the evidence was in plain view within the home, of course; this analysis might be much tougher on the police if the seized evidence had been hidden in the back of a drawer full of clothes, and the “buyers” had gone rooting through the drawers – something normal buyers wouldn’t feel free to do.

The court also rejects a sufficiency challenge, noting that the factfinder had enough evidence to draw the conclusion that Redmond was indeed in possession of the premises and the guns. In reading this last portion of the opinion, I was reminded of the Supreme Court’s decision 12 days ago in Cordon v. Commonwealth, also involving the question of possession of contraband by someone who was absent from shared premises. In Cordon, a majority of the Supreme Court reversed the conviction on sufficiency grounds, and one of the key facts was the portability of a container (a cooler) in which the contraband was found. A gun display case isn’t exactly portable, and that distinction may square these two rulings.